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4. Areas for further legal research

A. Charter of Rights and Freedoms Implications

Sections 7 (life, liberty, and security of the person) and 15 (equality) of the Canadian Charter of Rights and Freedoms may well provide other remedies in the circumstances of Bill 11. Although the Supreme Court in Irwin Toy Ltd. v. Quebec (AG), [1989] 1 S.C.R. 927 held that economic rights such as contractual freedom do not fall within the ambit of s. 7, the Court expressly left open the question of “whether those economic rights fundamental to human life or survival” could be protected by s. 7 (at page 1003).

Referring to the Morgentaler decision in which the Supreme Court relied on empirical evidence to determine that a woman’s s. 7 rights were infringed by the Criminal Code’s provisions on abortion, Choudhry concludes as follows:

Although the decision in Morgentaler is based on the Charter, not the Canada Health Act, it demonstrates how a court can assess a complex and rich body of evidence to arrive at an assessment of whether provincial governments are meeting their commitment to provide reasonably accessible services to the public. The question is not one of competence, but of judicial will. (At 491)

Morgentaler demonstrates that courts, equipped with expert testimony, can make sophisticated judgments about the advisability of certain procedures.

The impact of Bill 11 upon an individual’s security interests may well invoke the protection of section 7 of the Charter. As noted above, the Preamble to the Canada Health Act includes the following:

Whereas the Parliament of Canada recognizes … that continued access to quality health care without financial or other barriers will be critical to maintaining and improving the health and well-being of Canadians …

The wording of the preamble suggests that violations of the Canada Health Act have serious consequences for “life, liberty, and security of the person”. Even delay in the provision of medical services might have Charter implications.33 It is now also clear that government action or inaction that has a profound effect on one’s psychological integrity will trigger a s. 7 review.34 Moreover, the mere fact that fiscal considerations are at issue will not necessarily provide a defence to a governmental decision that infringes a Charter protection, such as the right in section 7 not to be deprived of one’s “security of the person”.35

In addition, section 15 of the Charter, which sets out equality guarantees, may well be fruitful36. To the extent that Bill 11 will have a disproportionate impact upon the poor, section 15 may be triggered. To date, poverty has not been held to be an analogous ground for purposes of s. 15. However, given the nexus between the fundamental right to security of the person where one’s health is involved and the possible discrimination vis-a-vis one’s social status, the development of Charter arguments may well be worthy of further analysis.37

B. The Role of the College of Physicians and Surgeons under Bill 11

The public administration principle is set out as one of the program criteria in s. 8 of the Canada Health Act. It must be met before a provincial health care insurance plan is satisfactory for purposes of federal cash contribution. It provides as follows:

8. In order to satisfy the criterion respecting public administration

(a) the health care insurance plan of a Province must be administered and operated on a non-profit basis by a public authority appointed or designated by the government of the Province. [emphasis added]

In addition, the “public authority” must be “responsible to the provincial government for that administration and operation” and be subject to central auditing by the authority that ordinarily audits the Province’s accounts.

Under the scheme of Bill 11, is the College of Physicians and Surgeons of Alberta (“the College”) makes key decisions about what procedures must be performed in a hospital and what can be contracted out to private for-profit surgical facilities. Is the College a “public authority” within the meaning of the Canada Health Act? In other words, would the public administration principle of the Canada Health Act be violated given the responsibilities assigned to the College under Bill 11? It is possible to read s. 8 of the Canada Health Act as requiring only that the provincial health care insurance plan as an entity be “administered and operated (…) by a public authority”. However, it may be possible to argue that where a Province has seen fit to delegate key aspects of its health care insurance plan to another institution, that this other institution must also satisfy the public administration criterion. We note that in s. 8(2), Parliament saw a need to specifically exempt designation of collection agencies from the application of s. 8(1). This is an indication that the public administration requirement otherwise applies to individual components of “administration and operation” of the plan, even if hived off to separate agencies or entities.

Here, the College of Physicians and Surgeons makes certain key determinations. Its by-laws determine what constitutes a “major surgical service” and thus what operations must be performed in a public hospital. It is the body that “accredits” surgical facilities. It presumably makes the key threshold determination as to what constitutes “enhanced medical goods and services”, since they are defined as those services which “exceed what would normally be used in a particular case in accordance with generally accepted medical practice”. So if a Court were persuaded that its key role under the Alberta scheme amounts in practice to operating, at least to a significant degree, the medical insurance plan, it must be a “public authority”; if not, section 8 of the Canada Health Act is not satisfied.

If the College does not itself meet the criteria stated in s. 8(1), according them some or all of these powers may violate the Canada Health Act.

Although this term “public authority” is not defined in the Canada Health Act, we note that in other general Alberta legislation, the College is not treated as such. For example, the College is not a “public body” for purposes of the Alberta Freedom of Information and Protection of Privacy Act, 1994, c. F-18.5. Although Schedule 1 of that Act provides an exhaustive list of “public bodies”, the College is not among them. Although it is a self-governing body with delegated statutory authority under the Medical Profession Act , this is far from determinative.

The College presumably does not have its books audited by the relevant Alberta authority, and would not likely consider itself “responsible to the provincial government for that administration and operation”, for purposes of s. 8(1)(b) of the Canada Health Act.

We note also that Principle 11 refers to determinations of whether procedures are “medically necessary”, and so insured, may be made by reference to “Clinical Practice Guidelines” and that these Guidelines are in turn administered by the Alberta Medical Association. To the extent that these Guidelines, and thus the Alberta Medical Association, may come to play a significant role in “management and operation” of the health plan, the Alberta Medical Association may also need to be evaluated in terms of whether it meets the requirements of s. 8(1) of the Canada Health Act.

In our view, the question of whether delegation of certain management and operational powers violates the “Public Administration” requirement under the Canada Health Act may be worth further study.

C. Future Effect

Some critics such as Dr. Michael Rachlis have suggested that when fully operational, the inevitable consequences of Bill 11 would be an infringement of the accessibility principle enshrined in s. 12 of the Canada Health Act. That principle reads as follows:

In order to satisfy the criterion respecting accessibility, the health care insurance plan of a province

(a) must provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise reasonable access to those services by insured persons (…) [emphasis added]

Dr. Rachlis suggests as follows:

Technically the charging of fees for uninsured services contemporaneously with an insured service might not compromise access. Theoretically, the uninsured service would not be medically necessary and, therefore, there would be no interference with access by limiting its provision to those who could afford the extra charge.

However, practically, at least some patients will feel that they cannot have the basic service without paying more. There will be others who will feel that they do not want to upset their surgeon by refusing the (presumably better) recommended extra service.38

If the critics are proven right and evidence becomes available subsequently which demonstrates that physicians have flocked toward private surgical facilities in preference to public hospitals, the latter may be left only to provide the bare minimum of “medically necessary” hospital services (as defined in the Canada Health Act), then the accessibility principle would then be violated: reasonable access to insured health services would be “impeded or precluded”, (at the least “indirectly”). In other words, if critics’ predictions prove true, then the accessibility principle would be transgressed. We stress, however, that evidence of this effect would be necessary or; otherwise a claimant could be met with a prematurity or mootness defence, were a remedy to be sought in a court of law.39

  • 33. Blencoe v. British Columbia (Human Rights Commission) (1998), 160 D.L.R.(4th) 303 (B.C.C.A.), on appeal to Supreme Court of Canada.

  • 34. In Cameron v. Nova Scotia Attorney General (1999), 177 D.L.R. 4th 611 (NSCA), the Court of Appeal concluded that the decision of the government to “deem” particular services to be “not medically necessary” violated the petitioners’ Charter rights under s. 15(1). However, it found on the specific evidence before it that the infringement was justified under s. 1.

  • 35. “The guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. The constitutional entrenchment of the principles of fundamental justice in s. 7 … implicitly recognize[s] that a balance of administrative convenience does not override the need to adhere to these principles”: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at 218-19. Justice Wilson again expressed these sentiments in a 1988 speech:

    The courts must careful [sic] scrutinize this legislation to ensure that it does not sacrifice the rights of the few simply to enhance the welfare of the many. For if the courts allowed rights to be overridden for merely utilitarian reasons the protection afforded to the individual would be illusory indeed (“Making of a Constitution” in Speeches Delivered by the Honourable Bertha Wilson: 1976-1991 (Ottawa: Supreme Court of Canada, 1992) at 563-64). [emphasis added]

  • 36. In Cameron v. Nova Scotia Attorney General (1999), 177 D.L.R. 4th 611 (NSCA), the Court of Appeal concluded that the decision of the government to “deem” particular services to be “not medically necessary” violated the petitioners’ Charter rights under s. 15(1). However, it found on the specific evidence before it that the infringement was justified under s. 1.

  • 37. See, e.g., Charter Committee on Poverty Issues, “Bill C-76 and the Human Rights of Poor People in Canada” (Presentation to the Standing Committee on Finance of the Parliament of Canada, 16 May1995).; Jackman, “Constitutional Contact with the Disparities in the World Poverty as a Prohibited Ground of Discrimination Under the Canadian Charter and Human Rights Law” (1994), 2 Review of Constitutional Studies 76. Note that the decision of the Ontario Divisional Court in Masse v. Ontario (Ministry of Community and Social Services) (1996), 35 C.R.R.(2d) 44, 134 D.L.R.(4th) 20, holds that the class of recipients of social assistance is (at p. 72 C.R.R., p. 45 D.L.R.) “heterogeneous and their status is not a personal characteristic within the meaning of s. 15(1)”. But see the decision of the Nova Scotia Court of Appeal in Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 119 N.S.R.(2d) 91, 101 D.L.R.(4th) 224.

  • 38. See Caledon Institute article, cited previously (see supra note 26 and accompanying text).

  • 39. Another area for further research might be as follows: If breakthroughs in medical technology redefine what is “generally accepted medical practice”, there is a danger that such technology would only be available for those who could pay for it in surgical facilities. Rather than the technology becoming available to all in public hospitals, it could be the preserve of surgical facilities offering “enhanced medical goods or services”. What is medically required would be increasingly frozen in time. An illustration may assist. Say that with advances in laser technology, laser sealing of wounds in the future obviates any need for sutures which could leave scars. Certainly traditional suturing constitutes “generally accepted medical practice” at the present time; a person could later be offered, however, laser sealing as an “enhanced medical goods or services” in a clinic. This technology might never come to be made available in public hospitals.